In an interview with Mother Jones, Brady Campaign co-president Avery Gardiner, makes the following claims about the “common use” of AR-pattern rifles in the US:
AG: There’s a case in Massachusetts that raises this exact issue. Worman v. Baker was decided in April by Judge William Young. It’s a 47-page opinion that really goes into this question of “in common use at the time” and said that’s the standard. Judge Young quotes Scalia’s opinion in Heller all the way through it and then upholds the Massachusetts law banning assault weapons. That case is going to be appealed to the First Circuit Court of Appeals. The Second, Fourth, Seventh, and the DC Circuit have all upheld assault weapons ban, so I predict the First Circuit will, too, but somebody’s going to appeal that to the Supreme Court, and we will have this discussion about what does “in common use at the time” mean? I think it’s likely that Judge Kavanaugh will be Justice Kavanaugh by then. And we know what he thinks because he already told us—he wrote that dissent in the DC case.
Gardiner misstates what Judge Young wrote in his opinion. In Worman v. Baker, Judge Young does not rely on the “common use” argument in upholding the ban. He instead makes the claim that AR-15 rifles are “most useful in military service,” and therefore are not covered by the Second Amendment.
That claim turns the 1939 Miller decision on its head. He bases his claim on Justice’s Scalia’s words that the Heller decision doesn’t invalidate the federal regulation of full auto firearms such as machine guns.
Judge Young pointedly rejects the “common use” argument, stating that, because AR-15 type rifles have military purposes, they fall completely outside the scope of the Second Amendment, whether they are in common use or not. He rejects the Caetano decision in favor of other appellate rulings the Supreme Court refused to hear.
The Heller decision is clear. The weapons protected are those in common use. From U.S. v. Heller:
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
The “common use” phrase used by Justice Scalia refers to the time the Miller decision was written, in 1939, not to the time the amendment was passed in 1791. Gardiner either mis-read the rather plain English in Justice Scalia’s opinion, or is willfully misrepresenting it to further her anti-gun stance.
In the 2016 Caetano decision (ruling that carrying a stun gun was covered by the Second Amendment), the Supreme Court unanimously held that the Second Amendment applies to all bearable arms, “even those that were not in existence at the time of the founding.” The Court has roundly rejected the theory that the Second Amendment only applies to those arms in use in 1791.
The theory that the Second Amendment doesn’t apply to arms that are “militarily useful” isn’t the only error in Judge Young’s decision. He starts his decision by claiming the Second Amendment was not considered an individual right until recently.
For most of our history, mainstream scholarship considered the Second Amendment as nothing more than a guarantee that the several states can maintain “well regulated” militias.
The idea that the Second Amendment only applies to “well regulated” militias is known as the “collective right theory.” Judge Young’s claim is in direct contradiction to the majority opinion written by Justice Scalia in Heller.
It is demonstrably not true that, as Justice Stevens claims, post, at 41–42,“for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.
Judge Young only quotes select sources from 1966, 1978, and 1971 to support his collective right claim. But historical sources show the judge is mistaken. The collective right theory had almost no adherents until the Kansas Supreme Court adopted it in 1905. But the Kansas Supreme Court decision only applied to the Kansas State Constitution’s right to bear arms. The collective right theory, applied to the Second Amendment, started to become part of Progressive ideology after the Kansas Supreme Court decision.
It became more popular after 1939 with mis-interpretation of the Miller decision. The veracity of the theory was not supported by academic research. It was merely assumed and started being attacked in law review articles in 1983.
Critique of the collective right theory went mainstream when famed constitutional scholar Sanford Levinson penned his seminal article, “The Embarrassing Second Amendment“.
Williams’ poorly-argued decision was published in April, before Justice Kennedy announced his retirement. The Supreme Court had been unwilling to hear Second Amendment cases since 2011, outside of the Caetano stun gun ruling. Judge Williams might have presumed the Court would refuse to hear his case, too.
Caetano applied directly to Massachusetts. There is a chance the First Circuit will follow the Caetano decision and reverse Judge Young’s ruling. As the Brady Campaign’s Gardiner notes, there is an excellent chance Judge Kavanagh will be Justice Kavanagh by that time. Judge Kavanagh has already written that semi-automatic rifles are protected by the Second Amendment.
If Worman v. Baker is appealed to the Supreme Court, there’s an excellent chance the court will restore more Second Amendment rights.
©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.